Last updated 31 January 2018

If the Mental Health Court finds that a person was of unsound mind at the time of the alleged offence or that the person is permanently unfit for trial, the court must decide whether to make a forensic order, a treatment support order or neither (s 131 Mental Health Act 2016 (Qld) (Mental Health Act)).

If the Mental Health Court finds that the person is temporarily unfit for trial, it must make either a forensic order or a treatment support order (s 132 Mental Health Act).

A forensic order provides a higher level of supervision and oversight than a treatment support order.

If the Mental Health Court decides to make a forensic order, it must decide which of the two types of forensic orders it will make:

  • It must make a forensic order (mental health) if the unsoundness of mind or unfitness for trial is because of a mental condition other than an intellectual disability (i.e. if the person has a dual disability and needs treatment and care for a mental illness, as well as care for their intellectual disability).
  • It must make a forensic order (disability) if the unsoundness of mind or unfitness for trial is because of an intellectual disability for which the person needs care, but the person does not need treatment and care for any mental illness (s 134(3) Mental Health Act).

Note that in the second of these two situations, the alternative of making a treatment support order is not available.

When the Mental Health Court is required to decide whether to make a forensic order, a treatment support order or neither, it must have regard to the person’s relevant circumstances (including their mental state, psychiatric history, any intellectual disability, social circumstances and willingness to comply with treatment), the nature of the offence and how long ago it was committed, and any victim impact statement (s 133 Mental Health Act).

The Mental Health Court must make a forensic order if it considers a forensic order is necessary to protect the safety of the community (s 134 Mental Health Act).

The Mental Health Court must make a treatment support order if it considers that a treatment support order, but not a forensic order, is necessary to protect the safety of the community (s 143 Mental Health Act).

It follows that a forensic order is more likely to be made than a treatment support order if the Mental Health Court considers that a higher level of supervision and oversight is necessary to protect the safety of the community.

If the Mental Health Court decides to make a forensic order, or alternatively a treatment support order, it must decide whether to make the category of the order inpatient or community (s 138 Mental Health Act). If the court makes an inpatient forensic order or a treatment support order, it must also decide whether to approve limited community treatment and to what extent and on what conditions (s 139 Mental Health Act).

Similarly, if the Mental Health Court makes a treatment support order, it may impose the conditions it considers appropriate (s 144 Mental Health Act). It must also decide whether the category of the order is to be inpatient or community. If the category is inpatient, the court may approve limited community treatment to the extent and subject to the conditions decided by the court (s 145 Mental Health Act).

The Mental Health Act sets out various other orders that can be made, or restrictions that can be imposed.

Whether a forensic order or a treatment support order is made, it will be reviewed at regular intervals by the Mental Health Review Tribunal. The Mental Health Act sets out the powers of the Mental Health Review Tribunal at the hearing of a review.